GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION LAW 2011-329
SENATE BILL 241
AN ACT TO require that DWI sentencing be at level one if the offense OCCURS WITH A CHILD LESS THAN EIGHTEEN YEARS OF AGE, A PERSON WITH THE MENTAL DEVELOPMENT OF A CHILD LESS THAN EIGHTEEN YEARS OF AGE, OR A PERSON WITH A PHYSICAL DISABILITY PREVENTING UNAIDED EXIT FROM THE VEHICLE IN THE vehicle, and to amend the law regarding electronic recording of custodial interrogations.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 20-179(c) reads as rewritten:
Existence of Grossly Aggravating Factors. - At the sentencing hearing, based
upon the evidence presented at trial and in the hearing, the judge, or the jury
in superior court, must first determine whether there are any grossly
aggravating factors in the case. Whether a prior conviction exists under
subdivision (1) of this subsection, or whether a conviction exists under
subdivision (d)(5) of this section, shall be matters to be determined by the
judge, and not the jury, in district or superior court. If the sentencing
hearing is for a case remanded back to district court from superior court, the
judge shall determine whether the defendant has been convicted of any offense
that was not considered at the initial sentencing hearing and impose the
appropriate sentence under this section. The judge must impose the Level One
punishment under subsection (g) of this section if it is determined that the
grossly aggravating factor in subdivision (4) of this subsection applies or two
or more of the other grossly aggravating factors apply. If the
judge does not find that the aggravating factor at subdivision (4) of this
subsection applies, The then the judge must impose the Level
Two punishment under subsection (h) of this section if it is determined that
only one of the other grossly aggravating factors applies. The grossly
aggravating factors are:
(1) A prior conviction for an offense involving impaired driving if:
a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or
c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.
Each prior conviction is a separate grossly aggravating factor.
(2) Driving by the defendant at the time of the offense while his driver's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).
(3) Serious injury to another person caused by the defendant's impaired driving at the time of the offense.
(4) Driving by the
defendant while (i) a child under the age of
16 years18 years,
(ii) a person with the mental development of a child under the age of 18 years,
or (iii) a person with a physical disability preventing unaided exit from the
vehicle was in the vehicle at the time of the offense.
In imposing a Level One or Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f)."
SECTION 2. G.S. 15A-211 reads as rewritten:
"§ 15A-211. Electronic recording of interrogations.
(a) Purpose. - The purpose of this Article is to require the creation of an electronic record of an entire custodial interrogation in order to eliminate disputes about interrogations, thereby improving prosecution of the guilty while affording protection to the innocent and increasing court efficiency.
(b) Application. -
The provisions of this Article shall
only apply to all custodial
interrogations of juveniles in homicide criminal investigations
conducted at any place of detention. detention. The provisions of
this Article shall also apply to any custodial interrogation of any person in a
criminal investigation conducted at any place of detention if the investigation
is related to any of the following crimes: any Class A, B1, or B2 felony, and
any Class C felony of rape, sex offense, or assault with a deadly weapon with
intent to kill inflicting serious injury.
(c) Definitions. - The following definitions apply in this Article:
(1) Electronic recording. - An audio recording that is an authentic, accurate, unaltered record; or a visual recording that is an authentic, accurate, unaltered record. A visual and audio recording shall be simultaneously produced whenever reasonably feasible, provided that a defendant may not raise this as grounds for suppression of evidence.
(2) In its entirety. - An uninterrupted record that begins with and includes a law enforcement officer's advice to the person in custody of that person's constitutional rights, ends when the interview has completely finished, and clearly shows both the interrogator and the person in custody throughout. If the record is a visual recording, the camera recording the custodial interrogation must be placed so that the camera films both the interrogator and the suspect. Brief periods of recess, upon request by the person in custody or the law enforcement officer, do not constitute an "interruption" of the record. The record will reflect the starting time of the recess and the resumption of the interrogation.
(3) Place of detention. - A jail, police or sheriff's station, correctional or detention facility, holding facility for prisoners, or other facility where persons are held in custody in connection with criminal charges.
Recording of Interrogations Required. - Any law enforcement officer conducting
a custodial interrogation in
a homicide an investigation of a
juvenile shall make an electronic recording of the interrogation in its
entirety. Any law enforcement officer conducting a custodial interrogation
in an investigation relating to any of the following crimes shall make an
electronic recording of the interrogation in its entirety: any Class A,
B1, or B2 felony; and any Class C felony of rape, sex offense, or assault with
a deadly weapon with intent to kill inflicting serious injury.
of Electronic Recordings. - During the prosecution of any
to which this Article applies, an oral, written, nonverbal, or sign
language statement of a defendant made in the course of a custodial
interrogation may be presented as evidence against the defendant if an
electronic recording was made of the custodial interrogation in its entirety
and the statement is otherwise admissible. If the court finds that the
defendant was subjected to a custodial interrogation that was not
electronically recorded in its entirety, any statements made by the defendant
after that non-electronically recorded custodial interrogation, even if made
during an interrogation that is otherwise in compliance with this section, may
be questioned with regard to the voluntariness and reliability of the
statement. The State may establish through clear and convincing evidence that
the statement was both voluntary and reliable and that law enforcement officers
had good cause for failing to electronically record the interrogation in its
entirety. Good cause shall include, but not be limited to, the following:
(1) The accused refused to have the interrogation electronically recorded, and the refusal itself was electronically recorded.
(2) The failure to electronically record an interrogation in its entirety was the result of unforeseeable equipment failure, and obtaining replacement equipment was not feasible.
(f) Remedies for Compliance or Noncompliance. - All of the following remedies shall be granted as relief for compliance or noncompliance with the requirements of this section:
(1) Failure to comply with any of the requirements of this section shall be considered by the court in adjudicating motions to suppress a statement of the defendant made during or after a custodial interrogation.
(2) Failure to comply with any of the requirements of this section shall be admissible in support of claims that the defendant's statement was involuntary or is unreliable, provided the evidence is otherwise admissible.
(3) When evidence of compliance or noncompliance with the requirements of this section has been presented at trial, the jury shall be instructed that it may consider credible evidence of compliance or noncompliance to determine whether the defendant's statement was voluntary and reliable.
(g) Article Does Not Preclude Admission of Certain Statements. - Nothing in this Article precludes the admission of any of the following:
(1) A statement made by the accused in open court during trial, before a grand jury, or at a preliminary hearing.
(2) A spontaneous statement that is not made in response to a question.
(3) A statement made during arrest processing in response to a routine question.
(4) A statement made during a custodial interrogation that is conducted in another state by law enforcement officers of that state.
(5) A statement obtained by a federal law enforcement officer.
(6) A statement
given at a time when the interrogators are unaware that the person is suspected
a homicide.an offense to which this Article applies.
(7) A statement used only for impeachment purposes and not as substantive evidence.
(h) Destruction or Modification of Recording After Appeals Exhausted. - The State shall not destroy or alter any electronic recording of a custodial interrogation of a defendant convicted of any offense related to the interrogation until one year after the completion of all State and federal appeals of the conviction, including the exhaustion of any appeal of any motion for appropriate relief or habeas corpus proceedings. Every electronic recording should be clearly identified and catalogued by law enforcement personnel."
SECTION 3. This act becomes effective December 1, 2011, and applies to offenses committed on or after that date.
In the General Assembly read three times and ratified this the 18th day of June, 2011.
s/ Philip E. Berger
President Pro Tempore of the Senate
s/ Thom Tillis
Speaker of the House of Representatives
s/ Beverly E. Perdue
Approved 11:25 a.m. this 27th day of June, 2011